14 June 2012

Introducing the Referendum Bill 2012, Premier Paula Cox noted that “democracy is not a spectator sport”.A bill establishing procedures for national referendums, including the promised one on gaming, has been passed by the House of Assembly.

She said the legislation: “Does mark a watershed moment and does provide the framework for putting power in the hands of the people.”

She explained that two previous referendums held in Bermuda required separate legislation to be passed for them.

The first was on capital punishment in 1990, when 78.4 percent favoured retention of the death penalty. The second was on Independence in 1995, and saw a 73 percent vote against breaking ties with Britain.

The new law means legislators will no longer have to pass a separate law each time a referendum is decided upon. It sets out the general parameters for them to be held in each case and is, according to Ms Cox, “based on tried and true electoral processes”.

Only registered voters can participate in a referendum.

The bill was passed with some amendments to the wording over how referendum questions shall be taken to be answered, in terms of yes votes, no votes and undecided votes.

Ms Cox moved the amendments to avoid any doubt over the issue.

According to the amended bill, a ‘yes’ vote will have happened if 50 percent or more of Bermuda’s registered voters vote in the referendum, and more than 50 percent of them mark their ballot ‘yes’.

A ‘no’ vote will have happened if 50 percent or more of Bermuda’s registered voters take part and more than 50 percent of them mark their ballot ‘no’.

A referendum question will be taken to be unanswered if less than 50 percent of registered voters vote, or if the voting patterns are such that the requirements for a ‘yes’ or ‘no’ result are not met.

Ms Cox said the principle behind the new legislation is “informed choice” and Government is committed to fairness, transparency and propriety in the conduct of referendums. The bill allows the Premier to set up an “ad hoc committee” if she wishes to advise on any matter relating to a particular referendum.

Ms Cox indicated that the national debate on gaming may be the first issue put to a referendum under the new act.

“The bill does provide a sound framework to hold any referendum, including the referendum to be held on gaming as promised in the Throne Speech,” she noted.

Attorney General Kim Wilson said in a speech to a United Nations seminar on decolonisation last month that the legislation will also help pave the way for a fresh referendum on Independence.

Leader of the Opposition Craig Cannonier welcomed the legislation. However, he said his party wishes to go one step further, and have “citizen’s initiative” referendums. Those are brought forward by the people rather than by the Government. Mr Cannonier said this would increase faith and participation in the political process.

His party colleague Grant Gibbons noted that under the new bill, power to decide the referendum question and the timing of the vote remains in the hands of government, not the people.

He also expressed concern that just one-quarter of the electorate could decide an issue as weighty as Independence.

“It certainly is not adequate when it comes to an issue such as Independence. The British Government says it has to be a clearly expressed majority of the people,” he said.

“Most of us believe we need some sort of super majority in order to carry an issue like that.”

Charles Swan of the United Bermuda Party welcomed the bill. However, he also sounded a note of caution that a referendum could be decided if just 26 percent of the electorate voted for or against something.

“That’s maybe something we want to reconsider or look at,” he suggested.

Later in the debate, Ms Cox indicated that the rules can be customised for individual referendums, “including even with the percentage of the participation”.

The bill was passed as amended.

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Referenda should be clear

Walton Brown

A referendum is a simple yet powerful means of giving a direct voice to the people on key issues. Properly worded, there should be no ambiguity on what the sentiment is of the electorate and governments are obliged to act accordingly. Our government has now introduced legislation to formalise the adoption of referenda as an additional means of voter input into the decision making process. For this they should be applauded.

A few cautionary words: referenda should be binding and they should be valid based on a simple majority of voters. While these two conditions might seem obvious, the two occasions when Bermuda has adopted a referendum to arrive at a position saw the absence of at least one of these two conditions. In 1990, government organised a referendum on the death penalty but lacked the courage to make it binding. As a consequence most voters didn’t bother to turn up, leading to an embarrassing 30% turnout.

In 1995 we had the infamous independence referendum. The anti-independence faction within the UBP, so fearful were they of popular sentiment, persuaded the government to rig the referendum giving a minority the right to decide the outcome. This was accomplished by a requirement that 50% plus one registered voters had to vote “yes” to independence in order for the “yes” vote to be successful. If there was an 80% turnout and just over half these voters had voted “yes” the result would have been invalidated. This would have given a minority of voters the right to decide the direction of the country. We cannot go back to these retrograde practices.

On another level, governments may at times face tough choices as to what should be decided by referenda. My view is that on questions of fundamental human rights governments should simply lead and, if necessary, try to persuade the public of the need for such decisions. An issue that stands out today that falls into this category is equality based on sexual orientation. Such rights fall beyond the pale of public opinion as much as did rights for black people in 1960s America. It is just the right thing to do. And governments should get along doing it.

Gaming and decriminalisation of marijuana are perfectly suited to decision by referenda. Either matter could easily be justified as a decision solely by Parliament: the former because it is so fundamental to any revitalised tourism strategy and the latter because of the damage associated with it. But the public have very strong views on both and as we are moving to a place of greater public engagement with decision makers this is entirely reasonable and progressive.

Referenda work best when they are clearly and simply worded and limited to two choices. Quebec‘s 1995 independence referendum question was controversial, in part for its 54 words and reference to outside documents. Scotland, in contemplating its question for its planned independence referendum, has to decide whether there should be two or three options. The outcome has to be a clear position.

There are some who argue that certain decisions should be decided by a super-majority, to reflect the “clear will” of the people. My view is that this is only valid when there has been a collective decision-making process to arrive at a position on a particular issue—crafting a new constitution, for example. If the people, either directly or through their representatives have come to such a position there is some validity in arguing a super majority (such as two-thirds) is necessary to alter that position. Anything else is code language for giving a minority of voters more weight to their vote than the majority.

As we travel down this path of strengthening our democracy and giving the electorate an additional avenue of decision making, the public will have a greater ability to be directly involved in the big issues shaping our progress. We should all be encouraged to participate.